Changes to the Family Law Act
By Megan Kelly, Lawyer, Dignity.Legal
From 6 May 2024, a very important piece of legislation – the Family Law Amendment Act 2023 – which was passed last October in Federal Parliament in relation to parenting arrangements, will come into effect. These changes will apply to all new and existing proceedings, except where the Final Hearing has already begun.
Existing parenting orders will not be automatically changed by the new law. People with existing parenting orders should continue to follow those orders.
The changes to the law set out:
- what separated parents are to consider in make decisions about long-term issues for their children, and
- and if parents cannot agree about future parenting arrangements, what a court must consider when determining what is in the child’s best interests.
It aims to simplify the factors which must be considered when making determinations about parenting matters with a focus on streamlining an otherwise convoluted legislative process. The current provisions have been said to be convoluted, problematic and confusing to parents trying to navigate the family law system after separation.
Prior to the new amendments, the Family Law Act required the Court to apply the presumption that it is in the best interests of a child for the child’s parents to have ‘equal shared parental responsibility’ (section 61DA of the Family Law Act 1975) for that child, unless there are reasonable grounds to believe that a parent of the child had engaged in abuse or family violence.
If the Court were to find that it was in the best interests of a child, the Court then had to further consider:
- whether it was in the best interests of the child to spend equal time with each parent, and
- whether it was reasonably practicable to do so.
If the Court found that it was in the child’s best interests for their parents to have equal shared parental responsibility, but that equal time was not, then the Court then had to consider:
- whether the child spending ‘substantial and significant’ time (section 65DAA of the Family Law Act) with each parent is in the child’s best interests, and
- whether it is reasonably practicable to do.
The major changes to be introduced include:
- Removal of the presumption of equal shared parental responsibility and the associated ‘equal time’ and ‘reasonably practicable’ considerations;
- greater powers to protect parties and children from harmful effects of protracted and adversarial litigation;
- simplified compliance and enforcement provisions for child-related orders;
- requiring Independent Children’s Lawyers to meet directly with children;
- amendment to the definitions relating to the concept of ‘family’ to be more inclusive of Aboriginal and Torres Strait Islander culture and traditions;
- a definition of ‘member of the family’ in the Family Law Act that is inclusive of Aboriginal and Torres Strait Islander concepts of family and kinship;
- powers to enable government to regulate family report writers; and
- ensuring that children’s voices are heard more easily in matters under the Hague Convention on the Civil Aspects of International Child Abduction.
You might be wondering; how does the Court determine what the ‘best interests of the child’ actually are? Currently there are two primary considerations:
- the benefit to the child of having a meaningful relationship with both parents; and
- the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence;
and 14 additional considerations (known as the section 60CC factors) which the Court must have regard to when determining each issue relating to children!
The new amendments narrow down those factors to just 6, they are:
- What arrangements would promote the safety (including safety from family violence, abuse, neglect, or other harm) of:
- The child; and
- Each person who has care of the child (whether or not a person has parental responsibility for the child);
- Any views expressed by the child;
- The developmental, psychological, emotional and cultural needs of the child;
- The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
- The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child (ie grandparents and siblings), where it is safe to do so;
- Anything else that is relevant to the particular circumstances of the child,
If the child is of Aboriginal or Torres Strait Islander heritage, the Court will also consider how parenting arrangements will help that child to enjoy and connect to their Aboriginal and Torres Strait Islander culture.
The Amendment Act also contains amendments to provisions about Independent Children’s Lawyers (ICLs), including a requirement for ICLs to meet with children and give the child an opportunity to express a view. Having the opportunity to express their views can be of significant importance to children and can assist in determining what is in their best interests.
In summary, the new laws encourage parents who do not have court orders to consult with each other about major long-term issues in relation to the child, and make decisions in the child’s best interests. For matters requiring judicial determination, the Court will make orders for parenting arrangements based on what is in the best interests of the child within an updated and proposed simplified legislative framework.
More information for parents and families can be found in this Fact Sheet: https://www.ag.gov.au/sites/default/files/2024-01/family-law-amendment-act-2023-factsheet-for-family-law-parents.PDF
Contact our lawyers at Dignity.Legal to answer any questions you have and to assist you with your family law matter.